The Brexit bill in the Lords: keep it constitutional

29 January 2018 | 14:41 | The Guardian

Picture: AFP

The prime minister may well have been tempted to pull the duvet over her head this weekend. The calls for a policy agenda beyond Brexit mounted. The personal criticism was unabated. One Tory, Robert Halfon, told the BBC it was time for “policymaking by lion”. The fissure in the party over leaving Europe looks deeper and more set than ever. Mrs May’s de facto deputy, David Lidington, appealed for mutual respect. Her critics are setting up the English local elections in May as a deadline – a stiff test when these largely urban contests were looking difficult anyway. In London and some other cities, hostility to Brexit is likely to consolidate Labour support. In others, the opposite is true: the perceived failure to get on with leaving Europe will further undermine the party’s backing. The sense of drift and the lack of the kind of policies that make a difference to people’s daily lives – the state of local hospitals, the cash crisis in schools, the impossibility of buying a home – will cost the party in areas where it is already at a low ebb.
Mrs May’s weakness will make it all the harder to deal with the next stages of the legislation that have to be enacted before the split with Brussels takes effect. On Tuesday the Lords begins its scrutiny of the European withdrawal bill with a two-day second reading debate. The government would like peers to think the Commons has already done most of the work needed to improve the bill. Peers disagree. The temptation for ministers and their supporters in the media will be to denounce the upper house for trying to sabotage the popular will. Playing the “treachery” card against unelected peers will, in some quarters, be hard to resist. That would be a serious mistake.
In a report published on Monday morning, a cross-party Lords committee including some eminent lawyers and constitutional experts concludes that the bill remains unconstitutional: it gives ministers unprecedented power to make and change law without parliamentary scrutiny, it fails to recognise the voice of the devolved parliaments and assemblies, and it even awards, in some circumstances, lawmaking powers to government bodies. The committee’s opinion is backed by the Bingham Centre for the Rule of Law, a constitutional thinktank. It warns that the bill puts at risk a fundamental principle – knowing what the law is. By giving ministers power to make law without proper parliamentary scrutiny, it undermines the certainty that makes Britain a good place to live and do business.
These are not an insurmountable flaws. But they will take work to get right. Government business managers, aware of the amount of legislation stacking up behind this bill, all of which will be needed in post-Brexit Britain, want to move fast. Repeated opportunities in the Commons to revisit some of the most contentious clauses have not been taken. On Sunday the leave-supporting Lords Brexit minister, Martin Callanan, was in conciliatory mood in the TV studios, but the proof of whether the government is listening will come when peers – including some of the UK’s most authoritative voices on law, parliament, and the constitution – start trying to make changes.
This is not a rerun of the constitutional crisis of 1910, when peers tried to stop the budget. No doubt some of the 184 people who hope to speak in the next couple of days do think Brexit is a terrible act of self-harm, but many others do not. If in the coming weeks the government is defeated, it will only be by a broad alliance of Labour and the crossbench peers. It will not be an attempt to reverse the referendum result; it will be the revising chamber doing its job.